public nuisance and outraging public decency - Law Commission

5.31 That does not imply that negligence, or other kinds of inadvertent fault, cannot be
sufficient to justify a sentence of imprisonment when some kinds of harm are
done, or risks posed, in consequence. The examples given earlier of rape, and of
dangerous driving, together with gross negligence at common law, show that this
implication should not be drawn. However, there must be an adequate, contextbased
justification for creating an imprisonable offence, respecting harm done or
risk posed merely through negligence (or its equivalent).
PUBLIC NUISANCE
5.32 As we have seen, 30 the existing test of fault in public nuisance is essentially an
objective, negligence-based one. Andrew Ashworth, in the case note cited
above, 31 drew attention to one point certified by the Court of Appeal in
Rimmington as being of public importance, namely:
whether it is sufficient to prove that the defendant ought to have
known of the risk that public nuisance would be caused by his
behaviour, or whether (after G 32 ) proof of awareness of the risk
should be required.
Counsel for Goldstein submitted that Shorrock was wrongly decided and that the
G test, of recklessness should be applied. The House of Lords did not give any
detailed consideration to this proposal, but simply asserted that the Shorrock test
was correct in light of previous authority and that G turned on a statutory
definition in which the word “reckless” was specifically mentioned. 33 As they
proceeded to hold that Goldstein was not guilty even on the Shorrock test there
was no need for a critical examination of this assumption. From the point of view
of law reform one may regard this as a missed opportunity.
5.33 It might be asked why the courts never applied a subjective test of fault, such as
whether there had been ‘malice’ in causing the nuisance, in much the same way
that malice was employed, for example, in the law of homicide and in the Acts of
1861 governing some non-fatal offences and criminal damage. 34 The answer
probably lies in the peculiar position that nuisance occupies on the borderline
between tort and crime.
5.34 The primary remedy in tort cases has always been a civil action by individuals,
commonly involving proof of negligence on the part of the tortfeasor. However,
where the injured party was not a neighbouring individual occupier but the public,
the wrong had to be framed as an offence, because by definition there was no
such thing as civil proceedings brought by the public. Had the law always
employed a category of administrative enforcement proceedings of a modern
type, public nuisance would have been put in this category. This is shown by the
facts that, at one period, the main use of public nuisance was as a springboard
30 Para 2.36 and following.
31 Para 4.13.
32 [2003] UKHL 50, [2004] 1 AC 1034.
33 Rimmington paras 39, 56.
34 Respectively, the Offences Against the Person Act 1861 and the Malicious Damage Act
1861 (now replaced by the Criminal Damage Act 1971).
63